Date: 20120727
Docket: IMM-542-12
Citation: 2012 FC 935
Ottawa, Ontario, July 27, 2012
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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SHAMSUN
NAHER CHOWDHURY
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Applicant
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and
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THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The Applicant is a citizen of Bangladesh. She applied for
permanent residence as a member of the Federal Skilled Worker Class under s.
75(1) of the Immigration and Refugee Protection Regulations, SOR/2002‑227
[Regulations] on November 25, 2009. In a decision dated November 25, 2011, a visa officer (the Officer) determined that the
Applicant did not meet the requirements for immigration to Canada as a member of the Federal Skilled Worker class.
[2]
The Applicant seeks to overturn that decision, asserting
that the Officer erred by:
1.
failing to have regard to the decision of Justice Russell
in Chowdhury v Canada (Minister of Citizenship and
Immigration), 2011 FC 1315, 4 Imm LR (4th) 38 [Chowdhury #1];
2.
concluding that the Applicant should only be assessed 22
points for education instead of 25 points for her 17 years of education;
3.
failing to substitute the points assessment with his own
evaluation as provided for in s. 76(3) of the Regulations; and
4.
breaching the rules of procedural fairness by failing to
provide the Applicant with an opportunity to address his concerns.
[3]
I have concluded, for the reasons which follow, that the
decision should be overturned
[4]
Applications for permanent residence under the Federal
Skilled Worker Class are reviewable on a standard of reasonableness (see Chowdhury
#1, above at para 18). As taught by the Supreme Court in Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190, “reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process”, as well as with “whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”.
[5]
The assessment in question was a second assessment, carried
out because of the decision of Justice Russell in Chowdhury #1. The
first reviewing officer had awarded the Applicant a total of only 61 points.
Pointing to errors with respect to the assessment of her adaptability, her
education (particularly her MBA studies) and a failure to carry out a
substituted evaluation, Justice Russell overturned the first reviewing
officer’s decision.
[6]
On this second review, the Officer awarded the Applicant a
total of 66 points; 67 points was needed to meet the requirements for
immigration to Canada. The only component of the evaluation that is questioned
by the Applicant is that of her education. If the Applicant had been assessed
25 points for education – rather than 22 points awarded – she would have met
the 67-point threshold.
[7]
To obtain 25 points for education, the Applicant needed to
demonstrate that she had 17 or more years of full-time study. The Officer found
that the Applicant had provided evidence of the equivalent of only 15.5 years
of full-time study - 12 for her pre-university education; 2 years for her B.
Comm.; and 1.5 years for her MBA. This evaluation resulted in an assessment of
22 points for her education.
[8]
The duty of fairness on the screening decision before me in
this case is at the low end of the spectrum. Nevertheless, I am not satisfied
that the Officer’s decision is reasonable or that the Applicant was afforded
procedural fairness. The concerns that I have revolve around the assessment of
the Applicant’s educational credentials.
[9]
With respect to her B. Comm., the first reviewing officer
had awarded the Applicant credit for a three-year program of study. This
finding was not questioned by the Applicant in her first application for
judicial review and was not commented on by Justice Russell in Chowdhury #1.
Nevertheless, the Officer examined the documents related to the B. Comm. and
determined that they only demonstrated the completion of “at most” two years of
study. I accept that the review of the Officer was a de novo review and,
further, that the Officer is not obliged to advise the Applicant of weaknesses
in her application (see, for example, Kaur v Canada (Minister of Citizenship
and Immigration), 2008 FC 1189, 75 Imm LR (3d) 260). However, in these very
unusual circumstances, as a matter of fairness, the Applicant should have been
notified that the Officer was re‑evaluating the B. Comm. documentation.
In addition, I cannot understand how the Officer came to the conclusion that
this was only a two-year program. The reference to 2001-2002 is quite obviously
a notation of the academic year in which the Applicant began her studies; it is
not, as apparently assumed by the Officer, a statement of her years of study.
[10]
The Officer’s assessment of the MBA program is also flawed.
The documents submitted by the Applicant reflect that her MBA program consisted
of 66 credit hours. The Officer’s analysis of how 66 hours could translate to
years of study equivalence is very difficult to understand and appears to be
based on extrinsic evidence not disclosed to the Applicant. In
particular, the
Officer, without notice to the Applicant, referred to the web site of a Canadian University, from which the Officer concludes that:
66 course hours would reflect 4 semesters of fulltime work
in a Cdn institution (15 hours/semester for fulltime semester with max of 18
hours).
[11]
Moreover, the Officer appears to have selectively read the
information on the website. For example, the Officer ignores the statement in
the website that a “normal full time load” can be as few as 9 credit-hours of
courses per term.
[12]
In brief, the decision of the Officer that the Applicant
should be awarded credit for only 15.5 years of education lacks the
transparency and justification that are required for the Court to conclude that
the decision was reasonable.
[13]
A further review should be undertaken by a different
officer. That officer may well come to the same result but should do so only
after receiving further submissions from the Applicant and providing the
Applicant with reasons that satisfy the requirements of reasonableness. The
Applicant must recognize that the officer is not bound by any of the previous
findings of either the first reviewing or second reviewing officer with respect
to any portion of the assessment.
[14]
Finally, I observe that the facts of this case are unique
and the opinions that I express herein should be limited to the situation of
the Applicant.
[15]
The Applicant seeks costs. I am not persuaded that special
reasons are present that would warrant an award of costs.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is allowed, the
decision of the Officer is quashed and the matter is sent back for
re-determination by a different immigration officer;
2.
the Applicant will have an opportunity to make further
submissions;
3.
no costs are awarded; and
4.
no question of general importance is certified.
“Judith
A. Snider”
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